Final October Term 2012 Stat Pack

[Updated June 27, 2013 2:50 PM: We have updated the Stat Pack to reflect the two petitions for certiorari that were granted today. The links below all feature updated information.]

Our final Stat Pack for October Term 2012 is now available, and you can download it in its entirety here. This edition features many of the same figures that we have provided for years now, like the Circuit Scorecard, Frequency in the Majority, and Justice Agreement Rates, as well as many new additions, like an expanded section on merits opinions in historical context, more information on 5-4 cases, and detailed Justice Agreement breakdowns. At the end of this post, we have included a few key takeaways from the Stat Pack.

You can view the Stat Pack as one document (available here) or in individual parts. This edition of the Stat Pack features the following sections:

We expect orders and possibly summary reversals tomorrow, June 27, 2013. If we receive any, we will update the Stat Pack to account for the changes.

We would like to thank all of the individuals who provided comments and feedback throughout the Term. Our Stat Pack is compiled as a labor of love, and the SCOTUSblog community has been hugely influential in shaping the content and design of the Stat Pack. If you have any further comments, suggestions, or corrections, please do not hesitate to email me at kbhatia@scotusblog.com.

Here are a few takeaways from the Stat Pack:

The Court released seventy-eight merits opinions for the Term, a number roughly in line with the number it has produced in recent years. (Page 9).

The Ninth Circuit, which has a reputation for being frequently reversed in the Supreme Court, lived up to that reputation during OT12. Of the fourteen cases at the Supreme Court during OT12 that came from the Ninth Circuit, two were affirmed and twelve were reversed, an eighty-six-percent reversal rate. The Court’s average reversal rate for other circuits and state supreme courts was sixty-nine percent. (Page 3).

The Eleventh Circuit, which was reversed in all six cases that it had in the Supreme Court, had a combined total of only five votes in its favor during OT12. That means it lost by an average margin of 8-1. By comparison, the Fifth Circuit, which lost five of its six cases in the Supreme Court, nonetheless received a total of twenty-two votes (out of a possible sixty-two) to affirm, for an average losing margin of 6-3. (Page 4). The Tenth and Seventh Circuits were the only two circuits with a winning record for the Term. (Page 3).

The Court released a greater percentage of 9-0 and 5-4 decisions than it has in the past. On average, from OT08-OT11, 43% of its cases were decided 9-0, with 22% decided by a vote of 5-4, for a combined total of 55% of cases that were either 9-0 or 5-4. During OT12, 49% of the Court’s cases were decided by a vote of 9-0, while 29% were 5-4, for a combined total of 78% of all cases. (Page 5).

For the first time in several years, the Court did not decide any cases that came to it by way of an appeal or through its original jurisdiction. An appeal differs from a writ of certiorari in a few small ways, and has comprised a dwindling part of the Court’s docket for several decades now. The Court has one case docketed for next Term that came by way of an appeal. (Page 6).

Justice Clarence Thomas issued more opinions this Term than any of his colleagues, twenty-five. He authored eight majority opinions, including five in cases that were decided 9-0, eleven concurring opinions, and six dissents. This is the third time that Justice Thomas has led his colleagues in this category since we began collecting opinion statistics for the Court; he also had the highest total number of opinions in OT04 and OT07. Last Term, Justice Thomas had the sixth-highest number of total opinions, sixteen. Justice Elena Kagan issued the fewest opinions this Term – eight majority opinions, two concurring opinions, and three dissenting opinions; last Term she tied with Justice Anthony Kennedy in that category. (Page 8).

The Court produced its second-lowest number of total opinions since we began collecting statistics during OT95 – 169 opinions in seventy-eight merits cases, eight more than the 161 opinions released during OT11. (Page 9).

Justice Samuel Alito took a star turn during OT12, authoring a staggering six 5-4 opinions. That number is particularly remarkable because he was only in the majority in thirteen 5-4 opinions (only the fourth-highest total). It is also the greatest number of 5-4 decisions in a single Term since OT06, when Justice Kennedy – who was in the majority of all twenty-four of that Term’s 5-4 decisions – wrote six majority opinions in 5-4 cases. Before that, no Justice had issued six majority opinions in 5-4 cases since we began tracking that statistic during OT95. (Page 12).

The conservative bloc once again dominated the slate of 5-4 opinions. Chief Justice John Roberts and Justices Scalia, Kennedy, Thomas, and Alito made up the majority in ten of the twenty-three cases decided by a five-Justice majority. The liberal bloc (Justice Kennedy plus Justices Ginsburg, Breyer, Sotomayor, and Kagan) prevailed in six decisions. (Page 15).

An interesting third alignment began to appear in 5-4 decisions. In three separate cases, the majority of Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, and Alito fended off Justices Scalia, Ginsburg, Sotomayor, and Kagan. This alignment — which was on display in Maryland v. King, Maracich v. Spears, and Adoptive Couple v. Baby Girl this Term, and in Williams v. Illinois last Term – has Justices Scalia and Breyer switching sides to join common adversaries. (Page 15).

Justice Kennedy was once again the Justice most frequently in the majority of 5-4 decisions. He has been either the most frequent Justice in the majority of 5-4 decisions, or tied for that title, in every Term since OT03 and thirteen times since OT95. (Page 16).

Justices Ginsburg and Kagan had the highest rate of agreement for all cases during OT12. The pair of Justices agreed in ninety-six percent of all cases, or in seventy-two out of seventy-five cases in which they both voted. The same pair had the highest agreement in all divided cases (92%), and in 5-4 cases (100%). The pair of Justices with the lowest agreement in all cases and in divided cases was Justices Ginsburg and Alito. Three pairs of Justices did not agree in a single 5-4 decision: Chief Justice Roberts and Justice Sotomayor, Justices Ginsburg and Alito, and Justices Alito and Kagan.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.